GPSolo Magazine - December 2004

The Dark Side of CollaborationWhen Good Technology Goes Bad

By Linda MacDonald Glenn

I love technology. Except when it doesn’t work. Such failures—because of a software glitch, an electrical surge, or just plain stupidity on the part of the user—can be ruinous. Every lawyer I know has a technology horror story, whether from personal experience or the vicarious experience of a client, close friend, or family member. Many of these horror stories involve the intersection of technology and collaboration. Although collaboration implies cooperation, there are times when the use of collaborative technology can inadvertently lead to the dissemination of information that was supposed to be private or confidential, or even the loss of crucial data shared among team members. Here are just a few horror stories about how collaboration + technology can = disaster. In each scenario, the exercise of reasonable care could have prevented bad outcomes.

• • •

The race is on to patent a type of nanotechnology promising to provide new treatment options for cancer patients. Pharmaceutical Company A gets information that Pharmaceutical Company B has had a breakthrough. In a classic case of industrial espionage, Company A makes sure that at the next possible opportunity it will monitor and intercept any wireless communications of Company B’s employees and researchers. And if Company B forgets to turn off the “Internet File and Printer Sharing’’ option in Windows while on wireless access, Company A will take a peek at its files, too!

This scenario was suggested to me as I was sitting in a hotel room in New York City, trying out my new wireless laptop. Although the hotel provided wireless access, my laptop was telling me that I had four different wireless networks that I could log onto. These wireless networks were from other businesses in the area or other guests in the hotel. It certainly reminded me of the need to evaluate the security of my data and my clients’ data, especially when it came to sensitive R&D information, intellectual property, and key financial information. An understanding of a company’s technical, intellectual property, and financial exposures in and around collaborative activities is required for effective risk management.

• • •

Attorney Smith, in an attempt to gain an advantage for his client, “accidentally” sends an e-mail with misleading and downright deceitful information to opposing counsel. Opposing counsel passes the misinformation along to the client, and the client instructs the lawyer to act upon it. Exactly as Attorney Smith had hoped.

Although Attorney Smith’s actions represent clear violations of several of the Rules of Professional Conduct (Truthfulness in Statements to Others; Misconduct by Engaging in Dishonesty, Fraud, or Deceit), they’ve certainly been tried by lawyers. The difficulty in nailing such a lawyer is proving that he knewthe e-mail was deceitful when he sent it. Perhaps the best lesson to be learned from this scenario is to beware of Trojan Horse e-mails—and not just those with viruses!

• • •

In a district that recently instituted a new e-filing system, a practitioner is attaching documents to file electronically. Apparently, he is not paying close attention to the names of the files he’s attaching, and he doesn’t bother to open the documents to double-check their contents. Upon hitting “Submit,” the lawyer instantly serves the judge and all opposing counsel with an annotated copy of his trial outline and the firm’s strategies.

Here the lawyer failed to exercise due care in maintaining client confidentiality. Your confidential information should never be placed in a file or location on the computer where it can be easily mixed with non-confidential information. In these times of electronic access, it is essential that your files are appropriately named and organized.

• • •

A team of consultants has been working together intensely for three months on an industry contract regarding the application of new technologies in the Third World. The team is to present its findings at a global conference 30 days after a critical deadline. A week before this deadline, however, one of the consultants sends an e-mail to the other members of the team, informing them that her computer has been infected with a virus. All the data she compiled during the last three months is wiped out.

Here the prevention mechanism is obvious: Backup, backup, backup! Whether on CD, memory stick, hard copy, or online (with appropriate security), backing up is one of the easiest ways to prevent disaster, yet it’s not used often enough. The ramifications go beyond potential malpractice. If you substitute the word “consultant” with, say, “corporate officer” or tweak the facts even slightly, you can find yourself in the new legal and regulatory compliance world of the Sarbanes-Oxley Act of 2002.

• • •

In a domestic property dispute, your client claims he is disabled with a bad back and needs alimony or a larger property distribution from his soon-to-be ex-wife. The wife hires a private investigator, who discovers that your client has been boasting in Internet chat rooms about taking Irish step dancing lessons.

Although somewhat amusing, this scenario is not at all uncommon (well, except the part about the Irish step dancing). Attorneys need to advise their clients—and be aware themselves—that individual privacy and control of personal information is at risk when using the collaborative technologies emerging every day.

• • •

Transparency is a good general rule regarding collaboration and technology. Don’t transmit via e-mail any information that you wouldn’t want publicly known. Of course, the risks always must be weighed against the benefits; if time is of the essence, you or your client may want to take the risk of transmitting sensitive information via e-mail or file sharing or wireless network. The key is to make a fully informed decision and know both the benefits and the potential drawbacks of collaboration and technology.

Linda MacDonald Glenn, JD, LLM, is a bioethicist, attorney, educator, and consultant; her research encompasses the legal, ethical, and social impact of emerging technologies. She can be reached at lindaglenn@biomedlaw.com.